Gita Lama Tamang vs State Of (G.N.C.T.) Of Delhi ...
2006 Latest Caselaw 2036 Del

JUDGMENT

J.M. Malik, J.

1. This order shall decide the above said two appeals. Both the appellants are Nationals of Nepal. They were sentenced to undergo Rigorous Imprisonment for 14 years each under Sections 29 and 21 respectively of NDPS Act and to pay a fine in the sum of Rs. 1,00,000/- each for each of the offences separately, failing which they were to further undergo Rigorous Imprisonment for one year under each Section i.e. 29 and 21 of NDPS Act. Learned Additional Sessions Judge further held that both the sentences would run concurrently and the appellants were given the benefit of Section 428 Cr. P.C.

2. The facts of the prosecution case are these. On the night falling between 28/29.01.2000, eleven Nepali Nationals were traveling to Bangkok by different flights at I.G.I. Airport, New Delhi. They were arrested. They admitted having swallowed capsules filled with Heroin. Few capsules were recovered from them at the spot and few were recovered as a result of evacuation in R.M.L. Hospital. On a follow up action on 31.01.2000, the custom officer raided room No. 102, Yak House, New Tibetan Camp, Majnu Ka Tila, Delhi in presence of two independent witnesses. Appellant Gita Lama Tamang opened the room. He informed that the said room was booked in the name of Feli Bahadur. Notice under Section 50 NDPS Act was given to the appellant but he did not make avail of this opportunity. A blue black zipper bag, containing 104 white coloured capsules, was seized. All the capsules were cut open and powder weighing 874 grams was recovered. One Nepali passport in the name of Gita Lama and a small pocket note bearing mark Shankar were also recovered from the above said blue black zipper bag.

3. The appellant made the following explanation. He had gone to Lahore on 27.01.2000 from I.G.I. Airport, New Delhi. There, he met Anil Kumar Tamang, his co-accused, who gave him above said capsules. He swallowed the same, came back to India via Wagah border, Amritsar, hired a taxi and arrived in Delhi. He took out all the 104 capsules through his rectum, washed them with water and kept the same in a bag, which was finally concealed in the above said blue black zipper bag. Two samples weighing 5 grams each were separated. Sample packets were sealed and panchnama was prepared. Statement of Gita Lama Tamang was recorded under Section 67 NDPS Act.

4. During investigation, it transpired that accused Anil Kumar Tamang was already in judicial custody in another case under NDPS Act. His two days custody remand was obtained, his statement under Section 67 NDPS Act was recorded, wherein he admitted the above said allegation that he had handed over those capsules to Gita Lama Tamang in Lahore at Badees Hotel. He also pointed out that he was working in cahoots with Budha Tamang, Sunil Kumar etc. and was sending the Nepali youths in drug trafficking with Sunil Kumar. However, the above named persons could not be traced.

5. The argument urged by learned Counsel for the appellants is many branched. The principal argument urged by learned Counsel for the appellants was that, although, two panch witnesses were arrayed as per Panchnama, yet, those were not produced in the dock for the reasons best known to the respondent. Learned Counsel for the appellants drew the attention of the Court towards a recent authority reported in Jitesh Chakravorti v. State of M.P. 2006 (9) Scale 644, wherein it was held, firstly, that in a case under NDPS Act, recovery of contraband in presence of the independent persons assumes importance. In this judgment, cases of Jagdish v. State of M.P. 2003 (9) SCC 159 and Bhola Ram v. State of M.P. 2001 SCC 35 were relied upon. In both these cases, witnesses had turned hostile. Secondly, it was held that an adverse inference can be drawn for non-examination of material witnesses.

6. There is another side of the coin which ought not be overlooked. The record reveals that summons were sent to the above said witnesses but they were found to be untraceable. Their names are Mr. Ngwang s/o Mr. Tharsam and Mr. Ktashi s/o Mr. Nagyal. They also belong to Nepal. However, this case stands on better footing as what was held in Nathusingh v. State of Madhya Pradesh . That case was investigated by the police. Both the public witnesses did not support the prosecution case. Reliance was placed on the testimonies of two police officers and it was held:

The mere fact that the prosecution witnesses are police officers is not enough to discard their evidence, in the absence of evidence of their hostility to the accused.

7. The reliance was placed upon the statements of the police officers in the cases reported in Ahir Raja Kohmia v. State of Sorashtra ,State Govt. of N.C.T. of Delhi v. Sunil Kumar 2001 (1) C.C. Cases (SC) 6. In T. Shankar Prasad v. State of Andhra Pradesh Crl. Appeal No. 909 of 1997, decided by Hon'ble Supreme Court on 12.01.2004, where it was held:

The Court may feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the official witnesses even if the trap witnesses turn hostile or are found not to be independent.

In Dalbir Kaur and Ors. v. State of Punjab 1977 Cr.L.J. 273 (SC), it was held:

Omission to examine material witnesses, who were not deliberately withheld or unfairly kept back, in the circumstances, held, was not sufficient to throw doubt on the prosecution case.

8. In State of Kerala v. M.M. Mathew , it was held that public servants have to be presumed to have acted honestly and conscientiously and their evidence cannot be discarded merely on the ground that they be interested in getting the accused convicted. In this case the conviction of the accused was based on the testimonies of Sales Tax officers.

9. In M. Prabhulal v. The Assistant Director, DRI 2003 (3) CC Cases (SC) 67, it was held:

The very fact that the police officers joined the said two witnesses creates a doubt about the fairness of investigation coupled with the manner in which the statements had been recorded in that case. The observations relied upon have no applicability to the facts and circumstances of the present case particularly having regard to the confessional statements of the appellants, which we have held were voluntary. On the facts of the case, recovery cannot be doubted for want of non-examination of independent witnesses.

Similar view was taken in Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors. 2001 IV AD (SC) 393; State of Govt. of NCT of Delhi v. Sunil and Anr. 2001 (1) SCC 6; State of U.P. v. Anil Singh , Pal Singh and Ors. v. State of U.P. .

10. This is well settled that there is a statutory presumption of correctness of official acts in their favor. This was so held in authorities. Mohd. Hussain v. State 1989 (3) Crimes 679, The State of Bihar v. Basawan Singh , Paramjit Singh and another v. The State , Shanker v. State of U.P. , Modan Singh v. State of Rajasthan (1978) 4 SCC 435, Dalbir Kaur and Ors. v. State of Punjab and Pal Singh and Ors. v. State of U.P. 1979 Cr.L.J. 917.

11. It is, thus, clear that no rule of thumb can be laid down to arrive at a conclusion as to what is the effect of non-examination of Panch witnesses. Each case has its own facts. In this case, both the Panch witnesses were Nepali. They were not traceable. There laid no rub for the defense to produce those witnesses but the accused did not produce them. Anil Kumar Trivedi, the then ACP (Preventive) at I.G.I. Airport, New Delhi, PW1 has supported the prosecution case down the line. There is no inkling in the evidence on record that the above said witness nurtured any grouse against the appellants/accused persons. His evidence is straight forward and there are no holes in his testimony. He is cleaner than a Laundry. The deposition of the PW1 is well corroborated by the confessional statements made by both the appellants under Section 67 NDPS Act, proved on record Ex. PW1/E & F and PW1/T, U & Z.

12. Another noticeable point in this case is that this is a case where there is a huge recovery of contraband, there must be strong reasons to falsely implicate the accused persons. It must be borne in mind that appellants are Nepali nationals. Police Officer had no ill will or motive to falsely implicate them in such a serious case.

13. Secondly, the learned Counsel for the appellants picked up a conflict with the above said confessional statements. He vehemently argued that the above said documents were prepared under duress and force. He pointed out that it is apparent that the above said statements were dictated by the custom officer himself. He argued that according to confessional statement made by appellant Gita Lama Tamang, he had stayed in Lahore in 32 Hotel instead of saying it as Badees Hotel. He stressed that this fact is clear pointer towards its involuntariness.

14. I find that this argument is lame of strength. These statements were recorded by the appellants/accused in their own hand writing. Their statements run into six pages and ten pages respectively. I have thoroughly perused their statements. It is apparent that the appellant Gita Lama Tamang knows a Hindi little. Most of the spellings are incorrect. It is quite fathomable that he is likely to make such like mistakes. The appellant has failed to show any part of his statement is incorrect. He has failed to explain as to what business he had got at Lahore. He could not explain away his presence at the spot. He also could not explain his presence in India. He could not disprove that he did not come to India on the last night from Lahore. He explained that he was called to India by his friend Phool Bahadur. He explained that he had indulged in this activity to earn money. He stated that he came to India on 24th January. He was sent to Lahore by Phool Bahadur on 26th and that he had promised to pay him a sum of 800 Dollars. He also stated that diary was recovered from his possession. There are so many other facts disclosed by him but he has failed to prove that any of facts mentioned therein is false. I am of the considered view that the statement made by him was made voluntarily.

15. I have also perused the statement of Anil Kumar Tamang. He disclosed that his family consists of his mother and one elder married sister. He does not have any brother and his father died 15 years back. His mother runs a whole-sale shop in Gaoue. His sister is married to Surya Bahadur Tamang. He has studied up to VII class. He went to Bangkok a number of times with his friend Sunil. He also went to Indonesia to fetch heroin capsules in the year 1998-1999. In the year 1999, they stayed in Dream Place Hotel, Parkashan Road, Pahar Ganj. He also mentioned the name of one Budh Tamang. He also stated that he stayed in Badees Hotel where he met 6-7 Nepali boys and one Pakistani boy. He stated that the green diary, which was recovered from the possession of Gita Tamang was with Gita Tamang. He had stayed at Hotel Badees. He stated that he had himself written his name, telephone number of Badees Hotel with his own handwriting in one of the pages of the diary. He had also signed it in presence of Gita Tamang at Hotel Badees. He stated that he had handed over 104 capsules of heroin to Gita Tamang. Sunil had asked Gita Tamang to handover these capsules to Budh Tamang at Majnu Ka Tila, Delhi. The accused/appellant has failed to show that the statement made by him is false. He could not point out that any fact mentioned therein is the mere brain waive of the Custom Officer.

16. In Triveni Prasad v. State of Maharashtra , it was held:

The wealth of details given by the accused in his confessional statement goes to establish that his statement is voluntary.

17. Similar view was taken in Namdi Francis Nwazor v. NCB 1994 (1) Crimes 579 (DHC).

18. It is well settled that confessional statement of the accused, if found voluntarily and truthful, has substance, it can do without frills. It must be kept in mind that Section 67 of NDPS Act is para-materia to Section 108 of Customs Act. If the confessional statement of the accused stands proved, there is no need of corroboration. This was so held in authorities reported in Ravinder Singh @ Bittoo v. State of Maharashtra 2002 (2) JCC 1059 SC; A.K. Mehboob v. IO, NCB ; Pon Adithan v. Deputy Director, NCB, Madras 1999 (2) JCC SC 335; Kalema Tumba v. State of Maharashtra ; Raj Kumar Karwal v. UOI and Ors. 1991 Cr.L.J. 97 (SC); Emmannuel Uchenna Ezenwosu v. NCB and Ors. 2003 (1) JCC 417.

19. It must be also borne in mind that as against accused Anil Kumar Tamang, there is his confessional statement which is corroborated by the statement of his co-accused Gita Lama Tamang which is admissible in evidence as per authorities reported in Pool Pandi v. Superintendent ; Ramesh Chandra v. State of West Bengal ; Naresh J. Sukhwani v. UOI (SC); Yudhister Kumar v. State and Anr. (DHC), II (1992) CCR 1122.

20. The learned Counsel for the appellants argued with vehemence that the prosecution has failed to establish that appellant Gita Lama Tamang was in conscious possession of heroin in question. He strenuously argued that the prosecution has failed to produce Feli Bahadur who owned the said room.

21. This argument is sans merit. Moreover, once possession is established, the person who claims that it was not in his conscious possession has to establish it, because how he came to be in possession, is within his special knowledge. Under Section 35 of NDPS Act, there is a presumption of culpable mental state. Under Section 54 of NDPS Act, it is presumed that the accused has committed an offence in respect of Narcotics Drugs or Psychotropic substances found in his possession which he has not satisfactorily explained. These facts are further supported in authorities reported in Jagdish Budhroji Purohit v. State of Maharashtra , Megh Singh v. State of Punjab 2003 VIII AD (SC) 27, Devchand Kalyan Tandel v. State of Gujarat and Anr. 1996 1 SVLR (Crl.) 245 SC, Pawan Mehta v. State 2002 Drugs Cases 183 (Delhi High Court).

22. Gita Lama Tamang should have summoned Feli Bahadur. He should have furnished his antecedents/particulars. The defense set up by both the accused is that of denial simpliciter. Both the accused did not dot the I's and cross the T's to understand their position clearly. This is an exercise in shirking and fudging rather than confronting the issues. Succinctly stated, apparently they have no defense to make.

23. Moreover, the recovery of passport of Gita Lama Tamang and diary from the blue black bag signed by Anil Kumar Tamang speak well for their conscious possession. The above said evidence of infinite significance remains unrebutted on the record.

24. The next submission made by the learned Counsel for the appellant was that the panchnama is in English language but both the accused do not know English language. The learned Counsel argued that a haze of suspicion covers the prosecution case.

25. I am unable to cotton with these arguments. First of all, if panchnama and confessional statements made by the accused under Section 67 of NDPS Act are read in juxtaposition, no incongruities are to be located. Nothing extra was included in panchnama. Secondly on the last page of the panchnama it is recorded that the panchnama had been read over and explained to the appellant Gita Lama Tamang and thereafter his signatures were obtained.

26. The next submission made by the learned Counsel for the appellant was that there is a difference in weight of the samples. Case of the prosecution is that sample weighing 5 grams was taken. However, the CFSL report reveals that when it arrived there, it weighed 3.29 grams.

27. To my mind this argument does not turn the corner. There can be many reasons as to why there was difference in weight. In Gurdev Kaur v. State of Haryana 2002 Crl.L.J. 3016 (P&H), it was held:

No doubt, in the report of the Forensic Science Laboratory, Madhuban, Ex. PMJ, the weight of the sample of opium had been mentioned as 8.29 grams approximately. This marginal difference in the weight as such cannot be taken as the basis for a conclusion that here had been tampering of the sample during the period Constable Roshan Lal had taken the sample to deposit the same with Forensic Science Laboratory, Madhuban.

28. Secondly, difference in weight can be due to moisture. 29. Thirdly the sample was found in intact condition having paper slips bearing signatures of the appellant. For all these reasons, the arguments in this respect must be eschewed out of consideration.

30. It was also argued on behalf of the appellant that provisions of Section 50 NDPS Act were never complied with. I have perused the statement of PW1. He stated that notice under Section 50 NDPS Act informing the accused that his person is to be searched and if he desired the same could be conducted in the presence of Magistrate or a Gazetted Officer of Customs to which appellant Gita Lama Tamang replied in writing that any custom officer could take his personal search. He further stated that on his personal search nothing incriminating was found and the recovery of the contraband was effected from a blue black zipper bag which was found lying in his room.

31. It is now settled that Section 50 applies, whenever the person of an accused is to be searched. For searching a blue black zipper bag, Section 50 has no application. Reference in this context is made to the following authorities.:

1. State of H.P. v. Pawan Kumar

2. State of Haryan v. Ranbir Singh @ Rana 2006 SCC 166

3. State of Punjab v. Balwant Rai 2005 III AD (S.C.) 407

32. The next submission made by the learned Counsel for the appellants was that there is no compliance of Section 42 Sub-Section (2) of NDPS Act, as the IO failed to send the report to his immediate superior official within 24 hours.

33. I see no merit in this argument. At the very outset the PW1 in his deposition stated that on 30th January he was authorised by Sh. Deepak Garg, Deputy Commissioner of Customs (Preventive) to search the above said room. He proved authorisation of search Ex. PW1/B. In G. Srinivas Goud v. State of A.P. 2005 VIII AD (S.C.) 309 : , it was held:

It will be anomalous to say that officers of gazetted rank who are conferred with power to authorise junior officers to carry out arrest, search and seizure, are required to report to their superior officers when they carry out arrest, search or seizure on their own. As already seen the rationale for this provision of informing superiors appears to be that when the arrest, search and seizure is without authorisation by gazetted rank officers, the officers taking action must keep their superiors informed. The superior officers must know about the action taken by their subordinates. However, the position of gazetted rank officers, in view of their rank and seniority and power to authorise subordinates to proceed to action, is totally different. They are the source of power of authorisation. The gazetted rank officers enjoy special position and privileges under the Act. They need not be equated to officers taking action without authorisation or warrants. The requirement of sending information to superior officers under Sub-section (2) of Section 42 cannot be insisted upon in their case. There is no bar in the statute to functions of arrest, search and seizure being carried out by the officers of the gazetted rank themselves. When they act on their own, they do not have to report to their seniors on such things.

34. It is an open secret that India is caught in the tightening coils of narcotics. It is difficult to fathom as to why India continues to be happier hunting grounds for foreign drug peddlers. Drug pushers are the lowest scum on earth and deserve no leniency. The appellants appear to be obdurate offenders having rapacious disposition. The sentence awarded by the learned trial court is reasonable and fits in with the offences committed by them. Appeals have no force and are hereby dismissed.